Monday, November 26, 2012

Highlights from the 7th Circuit U.S. Court of appeals May 8, 2012 ruling (.pdf) in ACLU v. Alvarez that was left in place today by the U.S. Supreme Court. The 2-1 majority opinion was written by Judge Diane Sykes:

The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois (“ACLU”) challenges the statute as applied to the organization’s Chicago-area “police accountability program,” which includes a plan to openly make audio- visual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders....

The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus trig- gering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events.....

The eavesdropping statute exempts recordings made by law-enforcement officers for law-enforcement purposes; officers have substantial discretion to record a wide variety of police-civilian encounters without the subject’s consent. These include any “enforcement stop,” a broadly defined term that includes “traffic stops,” “motorist assists,” “pedestrian stops,” and “requests for identification.” ...

The ACLU intends to implement a “program of promoting police accountability by openly audio recording police officers without their consent when: (1) the officers are performing their public duties; (2) the officers are in public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.” The program will include, among other things, audiovisual recording of policing at “expressive activity” events—protests and demonstrations—in public fora in and around the Chicago area. ....

The ACLU has identified many recent prosecutions against individuals who recorded encounters with on- duty police officers; three of these were filed by Alvarez’s office...

On the merits the State’s Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment. This is an extraordinary argument....

As best we can tell, the Illinois statute is the broadest of its kind; no other wiretapping or eavesdropping statute prohibits the open recording of police officers lacking any expectation of privacy...

By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.....

The eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communi- cation. Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.....

In his famous 1868 treatise on constitutional law, Thomas Cooley explained that a foremost purpose of the Constitution’s guarantee of speech and press liberty is

to secure the right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. To guard against repressive measures by the several departments of government, by means of which persons in power might secure themselves and their favorites from just scrutiny and condemnation, was the general purpose....

As applied here, (the eavesdropping statute) interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.....

Privacy interests are not at issue here. The ACLU wants to openly audio record police officers performing their duties in public places and speaking at a volume audible to bystanders. Communications of this sort lack any “reasonable expectation of privacy” for purposes of the Fourth Amendment.....

The ACLU’s proposed audio recording will be otherwise lawful—that is, not disruptive of public order or safety, and carried out by people who have a legal right to be in a particular public location and to watch and listen to what is going on around them. The State’s Attorney concedes that the ACLU’s observers may lawfully watch and listen to the officers’ public communi- cations, take still photographs, make video recordings with microphones switched off, or take shorthand notes and transcribe the conversations or otherwise reconstruct the dialogue later. The ACLU may post all of this information on the internet or forward it to news outlets, all without violating the Illinois eavesdropping statute. The State’s Attorney has not identified a sub- stantial governmental interest that is served by ban- ning audio recording of these same conversations. ....

The State’s Attorney insists that the broad reach of the statute is necessary to “remove incentives for inter- ception of private conversations and minimize the harm to persons whose conversations have been illegally intercepted.” At the risk of repeating ourselves, this case has nothing to do with private conversations or surreptitious interceptions.....

Audio and audiovisual re- cording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.....

The Illinois statute is a national outlier. Most state electronic privacy statutes apply only to private conversations; that is, they contain (or are construed to include) an expectation-of-privacy requirement that limits their scope to conversations that carry a reasonable expectation of privacy. Others apply only to wiretapping, and some ban only surreptitious recording...

The Illinois eavesdropping statute restricts an expressive medium used for the preserva- tion and dissemination of information and ideas. On the factual premises of this case, the statute does not serve the important governmental interest of protecting conversational privacy; applying the statute in the cir- cumstances alleged here is likely unconstitutional.

From the dissent by Judge Richard Posner:

A person who is talking with a police officer on duty may be a suspect whom the officer wants to question; he may be a bystander whom the police are shooing away from the scene of a crime or an accident; he may be an injured person seeking help; he may be a crime victim seeking police intervention; he may be asking for directions; he may be arguing with a police officer over a parking ticket; he may be reporting a traffic acci- dent. In many of these encounters the person con- versing with the police officer may be very averse to the conversation’s being broadcast on the evening news or blogged throughout the world. In some instances such publicity would violate the tort right of privacy, a conventional exception to freedom of speech ....

The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communi- cate effectively with persons whom they speak with in the line of duty. An officer may freeze if he sees a jour- nalist recording a conversation between the officer and a crime suspect, crime victim, or dissatisfied member of the public. He may be concerned when any stranger moves into earshot, or when he sees a recording device (even a cell phone, for modern cell phones are digital audio recorders) in the stranger’s hand. To distract police during tense encounters with citizens endangers public safety and undermines effective law enforcement....

Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do....

Suppose a police detective meets an informant in a park and they sit down on a park bench to talk. A crime reporter sidles up, sits down next to them, takes out his iPhone, and turns on the recorder. The detective and the informant move to the next park bench to continuetheir conversation in private. The reporter follows them. Is this what the Constitution privileges?...

the people who most need police assistance and who most want their conversations kept private are often the people least able to delay their conversation until they reach a private place. If a person has been shot or raped or mugged or badly injured in a car accident or has wit- nessed any of these things happening to someone else, and seeks out a police officer for aid, what sense would it make to tell him he’s welcome to trot off to the nearest police station for a cozy private conversation, but that otherwise the First Amendment gives passersby the right to memorialize and publish (on Facebook, on Twitter, on YouTube, on a blog) his agonized plea for help? And as in our informant example, many of the persons whom police want to talk to do not want to be seen visiting police stations....

Posted at 04:03:04 PM

Comments

You can follow this conversation by subscribing to the comment feed for this post.

--Posner's dissent makes no sense whatsoever!
"Suppose a police detective meets an informant in a park and they sit down on a park bench to talk. A crime reporter sidles up, sits down next to them, takes out his iPhone, and turns on the recorder. The detective and the informant move to the next park bench to continuetheir conversation in private. The reporter follows them. Is this what the Constitution privileges?"

If the "reporter" followed them to another bench, the "reporter" would likely get arrested for stalking or be warned of that. Game over.

This reminds me of one idiotic [of many] in the OJ Simpson trial, where the incompetent prosecutors tried to get testimony of one of the jail deputies in where he overheard Simpson scream very loudly to Rosy Greer that he did it! But the even more incompetent Judge Ito disallowed it as a sacrosanct priest/penitent conversation.
What amazes me is that 17 years later, that deputy has never publicly told what he heard.

Garry, I did not agree with Posner on the outcome, but I think what he was saying was that the statute protects a legitimate privacy right people might have in communincaitons that are intended to be private, but that take place in a public area.

He cites the Supreme Court's seminal Katz case for that principle. His analogy to the informant at the park bench is off, though. First, it's sort of an extreme example divested from reality -- a conversation with an informant would not take place as Posner posited, even as the judge at oral argument indicated that he thought this argument was akin to the ACLU telling the police how to do their jobs. Second, as Judge Sykes emphasized, the policeman is a public officer performing public duties in a public place. So people indeed might have a legitimate expectation of privacy in things said privately in a public place (though that notion is somewhat hostile to the "crime control" model favored by many GOP-appointed judges), but the public officer performing public duties does not, at least in some public setting. The statute barred these recordings even if they happened out in the open, on the street, in a park, etc. Perhaps had it been more narrowly drawn (no non-consensual recordings in interview rooms, inside offices of the detectives or the watch commander, or other areas not generally accessible to the public), it would have survived. At least that is how I understood this.

Anyone really interested in this issue, and in the thought process of Judge Posner, should listen to the argument on the Seventh Circuit's website. (Go to http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=11-1286&submit=showdkt&yr=11&num=1286 ... then click on "oral argument."). The tape is worth a listen. Because the Supreme Court accepts so few cases, the circuits are often the highest courts in the land, as the Seventh CIrcuit has been on this issue, for now.

About "Change of Subject."

"Change of Subject" by Chicago Tribune op-ed columnist Eric Zorn contains observations, reports, tips, referrals and tirades, though not necessarily in that order. Links will tend to expire, so seize the day. For an archive of Zorn's latest Tribune columns click here. An explanation of the title of this blog is here. If you have other questions, suggestions or comments, send e-mail to ericzorn at gmail.com.
More about Eric Zorn

Contributing editor Jessica Reynolds is a 2012 graduate of Loyola University Chicago and is the coordinator of the Tribune's editorial board. She can be reached at jreynolds at tribune.com.